A report in The Guardian earlier this week highlighted again the risk to employees in lying or covering up information on job application forms. Cheltenham Borough Council is suing its former managing director, Christine Laird, in the High Court because she allegedly failed to tell them that she had a history of depression when she took the job. In this instance Ms Laird disputes her liability and is fighting the claim.
Apparently she joined the council in 2002 and went on sick leave in June 2004, before leaving the following year. The Council is suing for the cost of cover for her whilst she was off sick, the cost of her ill-health pension and legal costs from some other (unnamed) legal proceedings. According to The Guardian these costs amount to £1mn, a huge sum.
The claim is brought on the basis of her alleged “fraudulent or negligent misrepresentation”. Claims for misrepresentation are usually quite difficult to prove, especially where the alleged comments were made orally. The basis for a misrepresentation claim is that the comment(s) induced the other party to enter into a contract and, as a result of that reliance, they suffered loss. The Council will, presumably, be arguing that if she had told them she suffered from depression at the job interview or when completing the medical questionnaire they would not have employed her and hence they have suffered loss in having to pay her a costly ill health pension. It will be interesting to see if it is argued by Ms Laird’s lawyers that such an approach would have constituted disability discrimination.
The facts of that case (such as they have been published) make interesting reading and I will await the outcome with interest. However, regardless of whether the Council succeeds or not, it is a salutary reminder to all job seekers to be very careful when completing c.vs or job application forms. This particular case is exceptional. In most cases an employer won’t bother suing in the High Court for misrepresentation if it discovers the employee to have been lying; it will just sack the employee for breach of trust and confidence. That is what happened to an NHS director a few weeks ago who was found tpo have lied on his c.v about his professional qualifications – he claimed he had a PhD and Msc in Psychology, whereas he only had a BSc. In fact not only was he dismissed but he ended up in jail for fraud.
This article will appear in the “Docklands” and “Peninsula” newspapers week commencing 2nd February.
There was reported this week a case from the European Court of Justice that will have employers and Europhobes going mad. A case called Ainsworth v HMRC (which was actually five conjoined cases) made its way through the English courts to the House of Lords, who referred it to the ECJ. The case (which has now changed its name to Stringer v HMRC, why I don’t know) centres on an interpretation of the Working Time Regulation and the difficult question of whether a person on long term sick leave accrues holiday (and thus the right o be paid for holiday) whilst off sick. In all these cases the employees had used up all their entitlement to sick pay.
The answer handed down by the ECJ is fairly indigestible, but the answer is simple: yes. In other words a person is on long term sick leave and they are no longer receiving sick pay, but their employment has not been terminated by the employer, they are entitled to be paid four weeks’ holiday pay when they return to work, or to be paid it in lieu when their employment terminates. If the sick leave lasts longer than one year, the employee’s right to receive the holiday pay is preserved. The case will now go back to the House of Lords who will have to adopt it. Undoubtedly many employers, especially those of a Europhobe disposition, will be coughing and spluttering over this, especially at an otherwise very difficult time for most companies. However, it does provide a good answer to the question not-quite-posed by Monty Python “what did Europe ever do for us?”
And now for something completely different: February 1st sees the annual uprating in compensation limits at Employment Tribunals taking effect, where the termination of employment (or other event giving rise to a claim) occurs. The limit on a week’s pay for statutory redundancy pay or basic award will increase from £330 to £350 per week and the maximum compensatory award that an Employment Tribunal can make increases to £66,200.
This article will appear in the “Docklands” and “Peninsula” newspaper week commencing 26th January
This is a copy of an article I wrote for the Docklands and Peninsula newspaper – unedited. It will appear in the week commencing Jan 19th.
As Eagle eyed readers may have noticed, I have been writing a blog since last September – called Jobsworth – devoted to legal matters, particularly employment law. Over time the number of hits has increased and, slowly but surely, a readership is building up. Although blogging has been around for a few years now, it seems to be only recently that it has increased in popularity and the number of blogs has increased enormously. The variety of subjects is amazing, and there is an ever growing number of blogs devoted to legal matters. Partly this is due to the ease with which one can set up a blog using ready-made software like Blogger or Wordpress, and because writing a blog is supposed to assist in achieving the Holy Grail of getting a high page ranking for your website on Google (I sometimes have a nightmare where in 50 years time there will be only two institutions left in the world – Tesco and Google). For many people it is a good opportunity to publish their own ramblings and it brings to mind the old adage that everyone has a book inside them waiting to be written, whether it should be published is another matter.
Hopefully, my effort doesn’t come into the latter category; I try to concentrate on topical matters in UK employment law and I have been writing a lot about redundancy just recently. The aim is to be informative and “sober”, if that doesn’t sound too pompous. Many people clearly want to access legal information without approaching a solicitor and incurring legal fees and blogs are good at providing that information. Where they fall down is that it is not possible to provide tailored legal advice to all readers: if you have a particular legal query or concern there is no substitute for taking legal advice. However, if you fancy some gossip or satirical comment, something more salacious, or just downright rude, that is catered for too amongst the various law blogs in the UK and the US/Canada. That is the best aspect of blogging that I have found, the sheer diversity and freedom that it provides.
Jobsworth is back from its short Festive break, feeling slightly less stressed, albeit somewhat lighter following a nasty gastric bug. The New Year stretches interminably away into the future and the current economic climate doesn’t look like improving anytime soon. Whilst I’m getting back to speed, it is a good chance to remember the long-forgotten ritual of Plough Monday, which was celebrated from pre-industrial until Victorian times on the first Monday after Epiphany – which is January 5th this year.
In its earliest Pagan form it involved farm labourers going from door to door pulling a plough behind them and demanding gifts (usually food or ale) from the householder in order to bring good luck to the crops. If they were refused they would plough up the front path, so it was really an early form of “Trick or Treating”. As industrialisation gathered pace it transformed itself from an agricultural ritual into a primarily urban one and the plough was replaced by gangs of youths knocking on doors in cities demanding beer. Local newspapers in this period often contain stories of disturbances, some quite serious. Inevitably the newly developing police forces soon stamped down on such unruly behaviour and the whole tradition died out.
What’s this got to do with Employment Law? Absolutely nothing. Normal service will be resumed shortly.
A version of this article will appear in the “Docklands” and “Peninsula” newspapers week commencing 6th January 2009
Please do feel free to leave comments here – feedback is always useful. What I would like to happen, if possible, is for people to write about their experiences with employment law issues or, indeed, employment lawyers for that matter. I’m not seeking to give individual advice via this blog but it would be great to create a “community” where people can swap stories from the ”coal face”. If in doubt don’t put names or identifying remarks in and please don’t libel anyone!
Looking forward to hearing from you.
May I wish all readers of this blog all good wishes for Christmas and the New Year? I will be adding additional posts over the festive period, depending on how bored I become with eating, drinking and watching TV.
Now that Christmas is in three weeks time it seems appropriate to repeat my annual warnings about the perils of enjoying the office Christmas party too much (assuming, of course, that your employer is still holding one).
Christmas parties can get out of hand and everyone comes to regret it afterwards. Work rules apply at the Christmas party as much as in the office, which is why actions or comments (which inevitably occur after too much alcohol has been consumed) often end in tears for all concerned. For this reason many companies choose not to hold an annual bash to avoid all the accompanying aggro. I had a good laugh when I hear about a friend of a friend of a friend (and not a client I should emphasise) who got so drunk one year that she flashed her breasts at her boss; the next year she merely got so drunk she had to be taken home. She hasn’t been invited to the Party this year. In another example, from some years ago, a woman (again not a client) slept with her boss after the party and then, in January, found she was selected for redundancy.
It’s not all about drunkenness and sex though. In one case, an employee who resigned and claimed constructive dismissal because his employers failed to honour the substantial pay rise promised to him at the Christmas party by his line manager lost his case. It was held the promise had not been intended to create a legally binding obligation.
Remember, office rules apply at the Christmas Party.
If you’ve any more examples of office party howlers please feel free to leave a comment below.
This article will appear in the Docklands and Peninsula newpapers week commencing 8th December
In all the time I have been writing this column I don’t recall ever having to type ”the law is an ass” before. That’s the first time and the reason is because of a case heard by the Employment Appeal Tribunal reported this week.
It concerned a care worker in a residential home who was required to be on call eleven hours a night seven days per week. She was allowed to rent a flat nearby at a subsidised rent so that she could get to the home quickly when required. Her duties also required her to work for eight hours per week during the day. She brought a claim under the Working Time Regulations against her employers alleging that she had not been allowed to take sufficient rest breaks at night, even though she was asleep. In other words, as it has been reported elsewhere, she had to be woken up in order to take her rest break, hence my initial remark. She won her case on appeal, the Employment Tribunal having found against her in the first instance.
However daft the facts of this case might seem, there is a serious point here. She was subject to the Working Time Regulations which require that workers be given eleven hours off in every 24 hour period and 24 hours off in every seven days. Furthermore, she was entitled to a 20 minute rest break every six hours. She had not contracted out of the Regulations and her terms and conditions of work infringed them. The main issue though concerns whether a person on call is deemed to be working – the answer from this case is yes. Although she may have been sleeping at night, she could have been called out at any time and was thus “at work”. From an employer’s point of view it makes sense to get employees to contract out of the Regulations to avoid this type of problem. The law may be an ass but not in this instance.
This article will appear in the “Docklands” and “Peninsula” newspaper week commencing 3rd November.
At these stressful times it is perhaps appropriate that the Court of Appeal should hand down an important judgment on workplace stress that may make it easier for employees to claim compensation in these cases.
The case of Dickens v O2 plc has just been reported. It concerned an employee of O2 who was placed under great stress through overwork and who told her line managers that she was “at the end of her tether”. They did nothing meaningful to address her problems. Although there were other “stressor factors” in her life as well as her difficult work environment, she was able to show that O2’s failure to deal properly with her had materially contributed to her psychiatric illness. She was signed off sick with stress for several months before O2 terminated her employment.
This case has attracted some interest amongst lawyers because O2 were held not to have taken action to remedy her stress despite the fact they offered a confidential counselling service. Since the leading case of Hatton v Sutherland, which settled the law in stress at work cases back in 2002, many employers have taken the view that they are protecting themselves from a claim by offering a confidential counselling service. That position has been diluted over the intervening years, but this case just reinforces that employers cannot afford to be complacent. If an employee complains to her employer that she is becoming unwell through overwork or bullying, the employer is under a duty to take remedial action or face the consequences.
This article will appear in the Docklands and Peninsula newpapers week commencing 27th October.
Leaving aside the global financial problems for a moment, this week (5th October to be precise) saw some important amendments to maternity leave regulations. If there is one topic that is guaranteed to bring me out in a cold sweat, it is maternity leave, with all its manifold time limits and subtle differences depending on whether the woman is on Ordinary Maternity Leave (OML) (for the first 26 weeks) or Additional Maternity Leave (AML) (the second 26 weeks). From the 5th it all became a bit simpler when the differences between the two periods of maternity leave were removed for women whose babies were born after that date. Prior to that date a woman on OML was entitled to all the terms and conditions of employment, like sick pay and pension contributions that she would have received had she been at work. Her contract was only varied in respect of salary, with her entitlement being covered either by her employer’s maternity pay policy (if there was one) or Statutory Maternity Pay (SMP)*. By way of contrast, a woman on AML before the 5th had none of those rights, save for the protection provided by the sex discrimination legislation – the right to return to her old job, to receive proper notice and the employer had a duty to uphold the implied term of trust and confidence and some other technical matters, but no right to receive pension contributions.
That has now changed and the legal position of a woman on AML is brought into line with a woman on OML. In particular an employer must continue pension contributions for women on AML.
There is also no longer the need for a woman to have worked for an employer for 26 weeks before she can acquire the right to take AML; a woman who knows she is pregnant when she starts a new job can claim AML after her OML has finished.
* By the way SMP pays 90% of average earnings for the first six weeks and then £117.18 for the next 33 weeks
For more information on the these matters have a look at the government’s website – www.direct.gov.uk/en/parents – it’s got a lot of useful stuff on it, including personalised calculators.
This article will appear in the “Docklands” and “Peninsula” newspapers week commencing 13th October 2008.
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